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1 HISTORICAL ANNALS LXXVIII 2012 Sławomir Gawlas Peasants in Piast Poland prior to Settlement with German Law as a Historiographical Problem I 1. The history of peasants as a distinct social class within the emerging Polish society of the Middle Ages encompasses at least six hundred years more time than has elapsed since the end of the period. 1 The length of the time period is not without importance for the depth of the transformation. The path from pre-state tribal structures to an estate society and the subjugation of the peasantry to the needs of developing noble estates (called folwarks) was a long and meandering one. The study of the peasantry constitutes a great international research subject that has brought about numerous generalizing observations worthy of consideration. This gives rise to a question about the meaning of the term peasant as a conceptual tool of analysis. A peasant is a term of the vernacular and its meaning seems more or less obvious until one tries to define it more clearly. What could they have in common, a farmer from the area of Nowy Targ and a mezzadro from central Italy? A Roman settler and peon from Latin America? A bauer from south Germany and an Indian landholder? Researchers-theoreticians who ask these questions and do not limit their studies to economies or peasant cultures of a certain time period or place are not unanimous in their opinions as to whether we are dealing here with an identity. 2 This opinion of Jacek Kochanowicz formed the 1 The article has been prepared as part of the research project no. NN Creative Processes of Forming of Polish Society in the Middle Ages ( ), led by Tomasz Jurek. Initially, the article was to include also the period of settlement with German Law and the late Middle Ages. It turned out, however, that this scope was much too broad. A preliminary version of the study was presented at the 18th General Gathering of Polish Historians in Olsztyn in September of J. Kochanowicz, Spór o teorię gospodarki chłopskiej. Gospodarstwo chłopskie w teorii ekonomii i historii gospodarczej, Warsaw, 1992, here: Chapter II: Kim są chłopi?, pp (quote on pp ); cf. id., Chłopstwo rozważania wokół definicji, Historyka. Studia Metodologiczne 13 (1983), pp , here (pp ) debating voices of A. Wyczański, C. Bobińska and L. Żytkowicz.

2 2 Sławomir Gawlas introduction to a thorough analysis of various concepts and arguments set forth in their support. It should be added here that discussions about concepts are not limited to the community of Polish researchers. 3 The particular broad meaning of the term is indicated by the co-occurrence of numerous structural features: living by farming, family character of a farm, large overlapping of production and domestic functions, limited market contacts, subordination of work expenditure to consumer needs in order to ensure biological reproduction and the economic survival of a farm, its dependence on the family developmental cycle, participation in a village community, traditionalism and conservatism of the culture. Peasants understood in this way were, and still are part of a broader society, functioning usually within a state, mainly with an estate society. This aspect, however, proves rather the narrower meaning of the term and its relation to the development of large estates. But a common linguistic practice suggests that peasants have existed since the great Neolithic revolution. 4 In general, Polish medievalists have no doubts about the notion and use the term in its broad meaning. Proposals which suggest that the subjugation of peasants to the patrimonial jurisdiction of large estates is a basic structural feature of their standing (or directly of the development of estate society) do not find broad acceptance. 5 In such a situation, I do not attempt to arbitrarily and unambiguously define the peasantry. It is enough to see their changeability over time. Grounds for contrasting the peasants with farmers functioning on the market appear only in the period closer to our time. Research into the subject has been carried out by historians, ethnographers, sociologists and economists. Despite the gradual decline of many traditional structures of village life, accumulated knowledge about the complex conditions of peasant farms still has 3 Wort und Begriff Bauer. Zusammenfassender Bericht über die Kolloquien der Kommission für Altertumskunde Mittel- und Nordeuropas, ed. R. Wenskus, H. Jankuhn, K. Grinda, Göttingen, 1975; W. Rösener, Bauern im Mittelalter, München, 1985, pp. 18 ff.; por. K. Gorlach, Chłopstwo, in: Encyklopedia socjologii, vol. 1, Warsaw, 1998, pp Chłopi (Peasants), in: Wielka Encyklopedia PWN, vol. 5, Warsaw, 2001, p It was for example B. Zientara who was against narrowing down the meaning of peasantry in his article Struktura chłopów w Polsce średniowiecznej, in: Struktura feudální společnosti na území Československa a Polska do přelomu 15. a 16. století, Praha, 1984, pp. 154 ff. This avoidance of terminological precision is not only a Polish characteristic, cf. e.g. Historie de la France rurale, vil. 1: La formation des campagnes françaises des origines au XIVe siècle, ed. G. Duby, Paris, 1975, pp. 307 f., 364 f., 379 f., 475 f.; G. Cherubini, The peasant and agriculture, in: Człowiek średniowiecza [1987], Warsaw, 2000, pp , deliberately limited the scope of his work to the late Middle Ages, but he observed (p. 165): The rural community was generally older than the seigneury; sometimes by many centuries if the village, as has been demonstrated for many Mediterranean regions, had origins reaching back to the Roman era or even to prehistoric times. R. Wenskus,»Bauer«. Begriff und historische Wirklichkeit, in: Wort und Begriff Bauer (cf. note 3), pp , inclined to a more narrow understanding of the term: Das Wort»Bauer«gilt im Vollsinne also historisch gesehen nur für den Angehörigen des erst hochmittelalterlichen Bauernstandes; es erhält erst mit der Formierung dieses Standes seinen eigentlichen Sinn (p. 27); however, analyses of the terminology of sources included in other articles are not limited to this period only.

3 Peasants in Piast Poland prior to Settlement with German Law 3 a practical value. 6 This has a heuristic significance for medievalists, enabling them to make a more penetrating analysis of fragmentary source references and to keep the necessary distance from the historiographical constructs obligatory in academic literature Until the urbanization accompanying the industrial revolution, peasants were the most numerous and, at the same time, the most poorly documented social stratum. For centuries they remained on the margins of literary culture, they were not the subject of the historical narratives, in which they appeared only occasionally. This disadvantage is further compounded by the backwardness of literary culture in our part of Europe. This applies especially to the Polish lands. Due to this reason, the analytical research into the history of medieval peasantry depends much more than in the case of other social strata on the general opinions of historians about the rules of political system. Looking from this perspective we have, when arranging the problem, to divide the epoch into four stages. The first one encompasses the tribal and early-state period, when due to the almost nonexistent written testimony the image is constructed on the basis of comparative data and evolutional models regarded as credible. The next period is called the epoch of Polish law. It was then that the foundations of a system of large, landed estates and peasant bondage were laid. The accompanying phenomena are still freely described as feudalization, which is an obvious reference to Marxist terminology. The origins of large landed estates, their sizes and the mechanisms of their growth have been the subject of various speculations and primary controversies. Studies can use equivocal references in the scant documentation appearing in the 12th century. A significant part of them consists of later forgeries, but those were based on older records of memory, difficult to stratify. Analyses are made easier by the conviction that the structures of the social order were stable and long-lasting, which permits us to an over-excessive application of the retrogressive method using the data (especially immunity provisions) from the later period the period of settlement with German Law. Its model and the process of its spreading are relatively well documented and identified, mainly on the basis of interpretation of foundation charters. The last period encompasses the late Middle Ages, when widespread books of records make it possible to confront the model with a rich source of documentation and to grasp the actual complexity of phenomena occurring in the countryside. These stages make clearly distinct and autonomous, to a large extent, research areas. They communicate, not on an analytical plane but mainly through general synthesis. It is hard to regard the present state of knowledge on this subject as satisfactory. Those stages must be taken into consideration, each of which has a comprehensive literature. Generally, however, research into the peasantry has, for a long time, focused on two main problems: the reconstruction of the socio-economic system of Piast Poland and on discussions about the model, course and 6 Cf. recently: I. Burkraba-Rylska, Socjologia wsi polskiej, Warsaw, 2008; K. Gorlach, Socjologia obszarów wiejskich: problemy i perspektywy, Warsaw, 2004; E. Yoshino, Polscy chłopi w XX wieku: podejście mikrodeskryptywne, Warsaw, 1997.

4 4 Sławomir Gawlas significance of German settlement, or settlement according to German law. It could be said, on the basis of observations of the literature on the subject, that both issues have been examined in separation from one another, and they are embroiled in broader world-view as well as political contexts. An image of the structure and evolution of the peasants situation is only seemingly the result of source analyses. For this reason all reflections on the state of knowledge should be accompanied by an outline of research development. In these circumstances, it is permitted to particularly emphasize the deconstruction of concepts existing in the literature. 7 Historiographical conditions should be considered in a broad sense. For the two first stages I am focusing on here, the broader context is determined by studies of the primitive social system of Poland and Slavdom. There is no space, however, to present these remarks in great length, so on this point I will limit myself to the most important factors. 2. The beginnings of interest in the peasantry can be traced to the Enlightenment period, which brought about an important shift in thinking about the past. 8 There emerged a comprehensive understanding of the social world, undergoing constant cumulative progress. The subject of history at least as postulated became about nations with their free citizens and the creative actions of ordinary people, and not only the rulers and their wars. In Poland, the existence of the peasantry was noted in texts written in Stanisław August Poniatowski s time: marginally in Adam Naruszewicz s synthesis, more extensively in Tadeusz Czacki s studies or Stanisław Staszic s reflections, 9 and even more broadly in radical, political commentary. 10 Ideas of the Enlightenment period overlapped with the Romantic myth of the peasantry, among whom the spirit of the nation was looked for. 11 Folklore became a repository of knowledge about the past. 12 The Slavophilic trend strengthened the interest in studies of Slavic antiquity in Poland and in at- 7 Of similar opinion was Benedykt Zientara forty years ago; Zientara, Struktura chłopów, pp. 155 f. The deconstruction of historiographical opinions as an introduction to research is used more and more knowingly, cf. e.g. P. Boroń, Słowiańskie wiece plemienne, Katowice, 1999, pp. 26 f. 8 A.F. Grabski, Zarys historii historiografii polskiej, Poznań, 2000, p. 61 f.; id., Dzieje historiografii, Poznań, 2003, p. 290 f., 388 f. 9 M.H. Serejski, Przeszłość a teraźniejszość. Szkice i studia historiograficzne, Wrocław, 1965, pp. 63 f.; por. S. Inglot, Rozwój badań nad historią chłopów polskich, in: Historia chłopów polskich, ed. S. Inglot, vol. 1, Warsaw, 1970, p. 7 f.; K. Tymieniecki, Historia chłopów polskich, vol. 1, Warsaw, 1965, p. 14 f. 10 Cf. J. Burszta, Kultura ludowa kultura narodowa. Szkice i rozprawy, Warsaw, 1974, p. 158 f.; id., Chłopskie źródła kultury, Warsaw, 1985, p. 134 f. 11 G. Cocchiara, Dzieje folklorystyki w Europie, Warsaw, 1971, p. 184 f.; M. Trojan, Kultury ludowe Europy w kręgu zainteresowań etnologii. Inspiracje, nurty, przełomy, Wrocław, 2010, p. 21 f.; cf. J. Serczyk, 25 wieków historii. Historycy i ich dzieła, Toruń, 1994, p. 230 f. 12 Dzieje folklorystyki polskiej Epoka przedkolbergowska, ed. H. Kapełuś, J. Krzyżanowski, Wrocław, 1970.

7 Peasants in Piast Poland prior to Settlement with German Law 7 degree, by the popularity of the synthesis used by his adversary. These two concepts determined the interpretational dilemmas that are still topical and relevant. 26 An important aspect of research development was diplomatic studies of the oldest documents and endowments of Church foundations. 27 It should be added here that research into settlements has emerged as a separate discipline. 28 The stabilisation of beliefs and opinions about society and the methods of its analysis stemmed mainly from the early 20th-century publications. They reflected the greater autonomisation of historical research within its own Polish tradition. Most important for the medieval period were, I think, the syntheses from the field of history of law which, summing up contemporary knowledge, dominated the language used for the analysis of social structure in that period. In 1905 Stanisław Kutrzeba published the first edition of his widely popular handbook of the history of the Polish political system. 29 Oswald Balzer, who disagreed with him, also had a great impact on historians as he established his own school but this was less long lasting. His constructs were propagated through lectures, handbooks written by students and polemics. 30 The next stage of research into the peasantry was initiated by a discussion about the origins and role of large estates, the social system, and the status of various groups of peasants, held between Roman Groby serf settlements (p. 55 f.) and he accepted the view that any land unexploited by private individuals belonged to the prince (pp ). Cf. a foreword included in the reprint, by A. Gieysztor, pp (here supplemented literature, interesting for the development of research, on pp. 666 f.). Cf. H. Barycz, Stanisław Smolka w życiu i nauce, Kraków, 1975, p. 29 f. 26 These dilemmas are presented in a concise way by B. Zientara, in: I. Ihnatowicz, A. Mączak, B. Zientara, J. Żarnowski, Społeczeństwo polskie od X do XX wieku, 4th ed., Warsaw, 1999, pp S. Kętrzyński, Zarys nauki o dokumencie polskim wieków średnich, vol. 1, Warsaw, 1934, p. 9 f.; K. Maleczyński, Zarys dyplomatyki polskiej wieków średnich, part 1, Wrocław, 1951, p. 42 f. 28 F. Bujak, Studia nad osadnictwem Małopolski, Kraków, 1905 (reissued in: Poznań, 2001), with an article by A. Janeczek, Franciszek Bujak: historyk w nurcie życia, p. 207 f. 29 S. Kutrzeba, Historia ustroju Polski w zarysie, vol. 1: Korona, Kraków, 1905; cf. A. Vetulani, Stanisław Kutrzeba historyk prawa, KH 54, 1947, pp Kutrzeba outlined the development of the organisation of the society, from a system based on clans to a state: the emergence of individual properties of the mighty (możni), the status of the free gradually evolving into that of the unfree. The unfree serfs (in the 12th century the class was declining as a remnant of the drużyna, or team of the prince s bodyguards) and rural people, organised into tens and hundreds, or into opole (a sort of union of villages), were subordinated to the organisation of a price s castle (gród, pl. grody). Many princely villages were escaping from direct subordination to the gród through donations to the Church and knights. The whole population was burdened by the services and dues of the prince s law. In the next edition there were various corrections introduced, but their analysis goes beyond the scope of present comment p. Cf. the last reprint (of the 8th ed. of 1949): Poznań, 2001, with an afterword by A. Hutnikiewicz, esp. pp. 231 f., 244 f. 30 O. Balzer, Historia ustroju Polski. Skrypt wykładów uniwersyteckich, Lwów, 1896; id., Historia ustroju Polski. Na podstawie stenogramu za zezwoleniem autora, Lwów, 1911; id., Z powodu nowego zarysu historii ustroju Polski, KH 20 (1906), pp. 1 57, ; id., Z zagadnień ustrojowych Polski, Lwów, 1915; cf. M. Pyter, Oswald Balzer i lwowska szkoła historycznoprawna, Lublin 2010.

11 Peasants in Piast Poland prior to Settlement with German Law 11 petence for the interpretation of written sources. 46 Synthetic approaches try to take into account various stances and, necessarily, they are of a more or less eclectic character. I do not mean to make this sound like a reproach; it is a reflection of the complexity of analytical arguments and the lack of the possibility to explicitly solve interpretative dilemmas. Benedyk Zientara tried to cope with them years ago not without some success. 47 A separate place is taken by the mainly incorrect but thought-provoking, expositions of Oskar Kossmann. 48 In this context, the presentation of the current state of research should be based on an analysis of the main trend of the last phase of the discussion, i.e. on the research of Karol Buczek and his polemic of many years duration with Karol Modzelewski. 3. It is only right to begin with the question of tribal heritage. Archaeologists attempt to revise the traditional paradigms and terminology used to analyse the mechanisms of state formation. That process is made possible by the huge increase in archaeological knowledge of the first monarchy that overcame the convictions about the gradual and evolutionary emergence of the monarchy. 49 Interpretation of material remains in the categories of social phenomena always leaves a broad margin of freedom. For this reason we should note Michał Tymowski s attempts to draw upon the results of comparative analyses of early forms of statehood and to adapt the terminology used in anthropological research. Attention is focused mainly on the problem of political structures of power. 50 In these reflections, soginal interest to him); id., Paměť krajiny středověkého Mostecka, Most, 1994 (an excellent documentation of rural settlements from the region of Most is mainly from the 13th century). 46 An exhaustive presentation of the state of research is given in: J. Dobosz, Monarchia i możni wobec Kościoła w Polsce do początku XIII wieku, Poznań, Zientara, Struktura chłopów, pp ; id., Społeczeństwo polskie X XII wieku, in: Ihnatowicz, Mączak, Zientara, Żarnowski, Społeczeństwo polskie, p. 50 f.; id., entry: Chłopi, in: Encyklopedia historii gospodarczej Polski do 1945 roku, vol. 1, Warsaw, 1981, pp O. Kossmann, Polen im Mittelalter, [vol. 1:] Beiträge zur Sozial- und Verfassungsgeschichte, vol. 2: Staat, Gesellschaft, Wirtschaft im Bannkreis des Westens, Marburg/Lahn, ; cf. K. Modzelewski, Średniowieczna Polska Oskara Kossmanna. Uwagi polemiczne, part 1, Kwartalnik Historii Kultury Materialnej (henceforth: KHKM) 34 (1986), no 4, pp ; part 2: ibid. 35 (1987), nr 1, pp ; O. Kossmann, Chłopi w Polsce średniowiecznej. Odpowiedź na uwagi polemiczne Karola Modzelewskiego, ibid. 37 (1989), no 2, pp ; K. Modzelewski, Między polemiką a nieporozumieniem, ibid., pp Recently, see: Z. Kurnatowska, Formowanie się państw słowiańskich w aspekcie porównawczym, in: Europa barbarica, Europa christiana. Studia mediaevalia Carolo Modzelewski dedicata, Warsaw, 2008, pp ; Kara, Najstarsze państwo Piastów; Buko, Archeologia Polski, p. 81 f.; J.M. Piskorski, Pomorze plemienne. Historia archeologia językoznawstwo, Poznań Szczecin, 2002; there is a comprehensive bibliography in each. 50 Recently M. Tymowski, Organizacje plemienne na obszarze Polski w IX X w. w świetle antropologicznych teorii systemu segmentarnego i wodzostwa (chiefdom), in: Europa barbarica, pp ; cf. id., Karabin i władza w Afryce XIX wieku. Państwo i armie Samoriego i Kenedugu oraz ich analogie europejskie, Warsaw, 1985; id., Państwa Afryki przedkolonialnej, Wrocław, 1999; Geneza i funkcjonowanie wczesnych form państwowości na tle porównawczym, eds. M. Tymowski, M. Ziółkowski, Warsaw, M. Tymowski participated in the work of H.J.M. Claessen s international team The Early State, which in organised seven confer-

13 Peasants in Piast Poland prior to Settlement with German Law 13 Slavs clearly reveal the poor diversity of their material culture, its initially low standard and (as could be guessed) its weaker social stratification. 53 In the situation of our historiography, I regard Karol Modzelewski s model constructs, presented in his book on the barbaric roots of Europe (Barbaric Europe), as a very important development. 54 They were based, to a large extent, on the analysis of codes of customary laws (Leges Barbarorum), contrasted as a product of the local society with accounts of outside observers and chroniclers. On this basis, the scholar formulates some further generalizations about the importance of barbaric heritage for the emergence of European culture. I have strong reservations about their one-sidedness, 55 however I have no doubts about the methodological validity of breaking the artificial division between the German and Slavic worlds. The method has been used, more or less openly, for a long time. 56 K. Modzelewski employed it to define, on the basis of evidence from various times and places, an ideal model of tribal societies. 57 Their main institutions were a system of tribal assembly (mallus, thing), its legal jurisdiction, supported by a shared pagan cult, the role played by an oracle in making political decisions, collective retribution (wróżda) as a means to force unanimity. The author devoted much attention to the problem of similarity between the structures and functions of the territorial community unit (pagus, centena, hundred, go, wierw, kopa) and its rights to cultivate a local unit for occupying and legally acquiring unclaimed, available land (Bifang). 53 See: Nie-Słowianie o początkach Słowian, ed. P. Urbańczyk, Poznań Warsaw, 2006; Buko, Archeologia Polski, p. 65 f.; Leciejewicz, Słowianie Zachodni, p. 22 f. In the discussion about the genesis of the Slavs, between the followers of the theory of the autochthonic origin and the theory of migration of the Slavs, I see no decisive arguments for either of these theories, and I am inclined to think that before the migration period there had been a significant degree of territorial coexistence between Germanic and Slavic peoples. I find the arguments that the mass migrations of the Germans, breaking off contacts with the Roman Empire, and the pressure of nomadic peoples left enough space to lend the ethnogenesis of the Slavs its specific material character, adapted to their long-lasting territorial mobility, quite convincing. 54 K. Modzelewski, Barbarzyńska Europa, Warsaw, 2004; cf. P. Guglielmotti, G.M. Varanini, Wywiad z Karolem Modzelewskim, PH 102 (2011), no. 1, p. 65 f., 75 f. 55 S. Gawlas, Przemiany systemów prawa na Śląsku w dobie kolonizacji w XIII w., in: Kultura prawna w Europie środkowej, Katowice, 2006, p. 56 f. 56 See, for instance, P. Żmudzki, Spór o analizę strukturalną podań i mitów dotyczących Początku Polski (na marginesie książek Jacka Banaszkiewicza i Czesława Deptuły), PH 93 (2002), no. 4, pp ; cf. J. Bardach, Historia praw słowiańskich. Przedmiot i metody badawcze, KH 70 (1963), no. 2, pp ; id., Metoda porównawcza w zastosowaniu do powszechnej historii państwa i prawa, CPH 14 (1962), pp Modzelewski, Barbarzyńska Europa, p The author, summing up the methodological scaffolding, writes: I have assumed that it is possible to cumulatively interpret sources concerning various peoples and written in various times, if we are dealing with a similar anthropological situation. This decision resulted in a significant broadening of the source basis. [ ] It would have been impossible to substantiate, or even reasonably formulate, many of the theses I have proposed here, on the basis of sources only for the Franks or the Lombards or Alemanni. [ ] The postulate that social systems should be examined separately for each people and only then the results be compared is absolutely without an ounce of realism. There will be no results because they are impossible to produce upon too narrow a source basis.

14 14 Sławomir Gawlas The community held an assembly (wiec) invested with judicial prerogatives. Its members were mutually responsible for law and order, as well as bearing collective responsibility for any criminal act and offence. It is in this context that the author placed the written accounts of the Polish opole: as a community of mir (the word can be translated as peace ), bearing collective responsibility for criminal deeds and the pursuit of offenders, occupying a territory with defined borders and functions in border disputes, and, in Wielkopolska, also obliged to pay a collective opole tribute of a cow and an ox. At the same time the scholar defends the prestate genesis of this community and presumes that the gród districts were formed from its territories. He admits, however, that in the times testified by historical sources they had ceased to be a subject of judicial authority, becoming an auxiliary and object of ducal judiciary. 58 On my part, I can only add that it means that the community was deprived of its basic prerogatives. Both local and tribal communities were formed of free people. Their status was defined by the wergild (główszczyzna), and its rate determined their status within the society. Wergild was the most important indicator of affiliation with the kinship community and tribal community, and at the same time a sign of the legal subjectivity of man. 59 The unfree had no right to wergild. Kinship as the basic social structure is made evident in sources on the occasions of wróżda. A tribe was a community of law. It included freemen, often of different social status, and bondsmen called Liti and Aldi. Modzelewski thinks that in the tribal society Liti were distant predecessors of personally bound bondsmen. 60 They were under the guardianship (mundium) of their lord (mund). Free women enjoyed legal personality, but remained under the mundium of a man, as a bridegroom purchased the right of guardianship from the parents of the bride who was henceforth submitted to his authority. All freemen were bound to bear arms. Their political community formed the basis of a state. The creation of the aristocracy took place only in some barbaric societies and was of secondary importance. A king was not an essential element of the tribal system, but his leadership led to the replacement of the tribal society with a more centralized royal power, i.e. a state. As the first among warriors, he was the mund of his tribesmen, playing the role of a great kinsman and great neighbour. He was also the guarantor of the mir protecting alien guests. Obligations and duties on his behalf were derived from political tributes. These were also shared by his officials. After conversion to Christianity, a part of these was ceded to the Church. In Ruthenia, Poland, Bohemia and Hungary the material status of ruling groups was derived in the 11th 12th centuries mainly from the labour and duties of common freemen. Also at that time, bishoprics lived on an income derived from that source. 61 The diversity of the barbaric world was of secondary importance. A key role was played by the elements of Roman heritage absorbed by the state of the Franks. Among them, the most important was the organization of large estates, going 58 Ibid., p Ibid., p Ibid., p Ibid., p. 446.

15 Peasants in Piast Poland prior to Settlement with German Law 15 against the collective social order of barbaric tribes. The new states of northern and eastern Europe derived mainly, according to Modzelewski, from tribal traditions, and their most powerful elites, interested in their participation in state revenues, were a conservative force. Their adherence to the right to land and social status of various groups of the population preserved elements of the old system within a system which he terms the system of ducal law. In central Europe a gradual degradation of the system was taking place in the 13th century, and those changes were initiated by the Church. The new system was based on the development of possession of land. It had not, however, obliterated all the accumulated differences between the East and West of Europe. The image of archaic social order drawn by K. Modzelewski is supposed to be quite similar for the Germanic and Slavic peoples. The author sees important omissions in it: the problems of the drużyna and of mythology. I think that in the case of the latter we are dealing with a much broader question of tribal worldviews and ideology of power. 62 The weak point of Modzelewski s construct is his attempt at its logical closure. Legal sources led the author to emphasise the restoration of the old order without going into detail about its everyday mechanisms. The situations analysed in the sources concern mainly societies that had already been organised into states or confronted its institutionalised structures. Modzelewski uses the term barbaric collectivism which has the character of an ideological message. It seems to denote the domination of kinship structures oligarchic by their very nature. The main shortcoming of his analyses lies, in my opinion, in the use of language that anachronises reality. It is, therefore, not surprising that the author seems to believe in the existence of a single and established system of tribal laws: Someone had to preserve the law in their memory, voice it at meetings at which disputes were being settled and offences dealt with, and ensure adherence to tradition. 63 This allowed the author to regard the records of customary law as its written codification 64 and the Leges Barbarorum as the reality of written laws. 65 Thus, the wróżda turns into the legal alternative of wergild whereas in fact it was the other way round. 66 The longer the details of the above construct are examined the more doubts proliferate. Yet, the general picture of the institutions of tribal jurisdiction exercised by the wiec and early state seems to be quite convincing and inspires trust. 67 The discussed 62 For this reason it strikes me as strange that great comparative analyses of Jacek Banaszkiewicz were omitted. 63 Ibid., p Ibid., p Ibid., p. 49 f. 66 Ibid., p On the bans on Fehde (feud) and their effectiveness, see: A. Patschovsky, Fehde im Recht. Eine Problemskizze, in: Recht und Reich im Zeitalter der Reformation. Festschrift für Horst Rabe, Frankfurt/Main 1996, pp ; G. Dilcher, Friede durch Recht, in: Träger und Instrumentarien des Friedens im hohen und späten Mittelalter, Sigmaringen 1996 (Vorträge und Forschungen 43), pp Cf. Boroń, Słowiańskie wiece; id., Słowiańskie plemię. O pojęciu i jego rozumieniu w polskiej historiografii, in: Viae historicae, pp ; also H. Hattenhauer, Europäische Rechtsgeschichte, 2 ed., Heidelberg, 1994, p. 8 f.

16 16 Sławomir Gawlas book makes us more aware of the problem of social differentiation before the development of state structures, and of the necessity to critically re-evaluate the way we think about tribal heritage. I think that Barbaric Europe should initiate a new phase of discussion, that is only now gaining momentum. This can not be said, however, of those parts of the book that are concerned with the role of the barbaric heritage on the later stages of development of state organisation and the creation of a European identity. The Christianisation of new peoples was certainly as important as social revolution aimed at the foundations of the tribal system, 68 but an interesting analysis of the accompanying changes does not suffice to outline the principles of the new order. The author, looking intently at the tribal past, skips historical periods, ignores the depth of transformations and chooses, in my opinion, his arguments in an arbitrary way. Readers ask the question why the so vividly described functioning of kinship mund over free women 69 or the duty of clan vengeance 70 has to belong to the shared heritage of contemporary Europeans and not to Islamic societies? There is no question about the origin of diminished importance of the ties of kinship and institutionalisation of social life. The author lost sight of all the great European transformations of the 10th 13th centuries, including the feudal revolution, which destroyed the foundations of tribal order and developed the model of the West. 71 The model is reduced to dominion over land, and in addition it is regarded as the heritage of antiquity. Slavic material is derived from the territories of the Polabs. The material shows, contrary to his intentions, how difficult it is to deduce the relations in the countries of Central Eastern Europe in the 13th century directly from tribal times. If it is admitted that in Poland the judiciary was monopolised by the ruler and his officials, it should also be added that there was a significant transformation, and it is not sufficient to refer to auxiliary and debatable in details functions of opole to present the continuity of the institutions. II 1. The societies incorporated into the Piast state represented great territorial diversity, clearly shown by archaeological research. One can harbour doubts whether in all those territories developed tribal structures in the sense described above existed. Actually, it seems that the social reality was rather unstable. The incorporation itself was made in different ways: brutal conquest, tributary dependence, maintaining a separate existence (like in Kraków). Presumably, there could have been varying degrees of organisation and of destruction of the previously existing 68 Modzelewski, Barbarzyńska Europa, p. 454 f. 69 Ibid., p. 158 f. 70 Ibid., p. 124 f.; cf. a classic study by Ciszewski, Wróżda i pojednanie. 71 S. Gawlas, Komercjalizacja jako mechanizm europeizacji peryferii na przykładzie Polski, in: R. Czaja, M. Dygo, S. Gawlas, G. Myśliwski, K. Ożóg, Ziemie polskie wobec Zachodu. Studia nad rozwojem średniowiecznej Europy, Warsaw, 2006, p. 29 f.

17 Peasants in Piast Poland prior to Settlement with German Law 17 social structures. There are grounds to believe that the formation of a state should respect the existence of basic institutions, but there are no explicit indications to think that the process played an unambiguous role in standardising social structures. We should also consider the hypothetical diversity of the freeborn (and also bondsmen and the unfree) who in the process of state-development were further stratified into various social strata and then into estates. But to deduce the general state of things in a period several centuries later from the appropriated powers of tribal communities seems to be too precarious, since too much time had passed, and there is, in addition, a clear cut-off date of the collapse of the first Piast state. The problem of the drużyna, to which great importance is given for the wielding of power by the rulers in early states, and for the development of warriors as a separate social class, should be radically reformulated and reduced in light of the recent book by Paweł Żmudzki, whose remarks have been very well documented. 72 Thus, there is no possibility to outline more precisely the starting point of social differentiation. Due to the interrelations of the phenomena, any analysis should be as comprehensible as possible. This means that we should try to examine the origins of institutions documented in 13th-century sources, before applying the method of retrogressive inference. As a result of the excessive use of this method, the continuity and stability of social or state structures are overestimated. There are many more factors indicating that the collective term of the system of ducal law used to denominate the next epoch in the history of the peasantry should be regarded as doubtful. This is further implied by the internal context itself, in the form of the growing incorporation of Poland into the world of Latin Europe, which in the 11th 13th centuries underwent a significant transformation. At least for the 12th century we are able to document some fundamental external influences on the Polish lands. In my book O kształt zjednoczonego Królestwa (On the Shape of a united Kingdom) I tried to make them more evident with the help of comparative material. 73 I also questioned the assumptions underlying the image of Polish society, present in the polemics between K. Buczek and K. Modzelewski, and despite a weak response in the literature I stand by this argument. In the collection of essays Ziemie polskie wobec Zachodu (The Polish Lands versus the West) I think I have added new elements that contributed to the turn of events in Poland The problem of the peasantry taking shape as a distinct social class within the Piast state requires a more thorough analysis of their actual historiographical image first in the texts by K. Buczek. 75 To begin with, we should note their outstanding methodology: the exhaustive source survey, well thought-out literature 72 Żmudzki, Władca i wojownicy, p. 306 f. 73 S. Gawlas, O kształt zjednoczonego Królestwa. Niemieckie władztwo terytorialne a geneza społeczno-ustrojowej odrębności Polski, 2 ed., Warsaw, 2000, p. 65 f. 74 Gawlas, Komercjalizacja, p. 72 f. 75 These texts are to be found in the collection: K. Buczek, Studia z dziejów ustroju społeczno-gospodarczego Polski piastowskiej, vols. 1 3, Kraków Warsaw,

18 18 Sławomir Gawlas on the subject, excellent knowledge of Slavic and German comparative material, thoroughness of analyses as well as the personal knowledge of problems of the condition of peasants 76 as the scholar said himself on many occasions. 77 In this sense we can only agree with the opinion of Jan Wroniszewski, who has recently made a thorough analysis of Buczek s views, 78 that Buczek believed in the effectiveness of inductive reasoning, and because of his excellent knowledge of the whole source material, a majority of his conclusions is indisputable today. It should be remembered, however, that for him the correctness of conclusions was determined by their conformity with all source information. 79 In their interpretation, he had his doubts, but he preferred to know less but that with certainty. 80 Buczek, almost by definition opposed a priori models, 81 considered his opinion to be directly derived from source material. He emphasised the fact that transformations resulted from plenty of individual changes and not from some short-term and general at the same time ordinances or actions. 82 He was convinced about the durability of the basis of peasants existence, fully recognised the value of the retrogressive method and strongly objected to the use of the principle quod non est in scripto non est in mundo (If it is not in writing, it is not in the world). 83 Stressing that in society all is interrelated into one organic, as might be said, 76 See Karol Buczek ( ). Człowiek i uczony, ed. D. Karczewski, J. Maciejewski, Z. Zyglewski, Kraków Bydgoszcz, 2004; F. Sikora, O życiu i działalności Karola Buczka, in: Buczek, Studia, vol. 1, pp K. Buczek, W sprawie interpretacji dokumentu trzebnickiego z r (1957), reprinted in: id., Studia, vol. 1, pp ; on p. 146 the information that the village of Kaszów is the home village of the one who is writing these words, with a note: I mention it because for a very long time I have been deeply interested in the history of the region. The personal knowledge of peasant mentality was sometimes an important argument: These matters are for me, a peasant s son who was born and raised in the country, in part also before the First World War (I went to secondary school in 1914/1915 and stayed in touch with my homeland till 1946) easily understandable : id. Egzekwowanie świadczeń publicznych w Polsce wczesnofeudalnej (1982), reprinted in: id., Studia, vol. 3, p J. Wroniszewski, Karol Buczek badacz ustroju prawa książęcego, in: Buczek, Studia, vol. 1, pp Ibid., p See, for example, K. Buczek, Targi i miasta na prawie polskim (okres wczesnośredniowieczny), Wrocław, 1964, p. 36: We know so little about the 10th century that the problem [ ] has to remain unsettled, since from a scientific point of view it is better to know less but to know it precisely than to know a lot but be uncertain about it ; cf. id., O chłopach w Polsce piastowskiej, part 1 (1974), reprinted in: id., Studia, vol. 3, p Id., Głos w dyskusji nad początkami państwa polskiego (1960), reprinted in: id., Studia, vol. 1, p. 23 f.; cf. id., Gospodarcze funkcje organizacji grodowej w Polsce wczesnofeudalnej (wiek X XIII) (1979), reprinted in: ibid., vol. 3, pp , e.g. p Id., Z badań nad organizacją gospodarki w Polsce wczesnofeudalnej (do początku XIV w.), reprinted in: id., Studia, vol. 2, p Id., Uwagi o prawie chłopów do ziemi w Polsce piastowskiej (1957), reprinted in: id., Studia, vol. 1, p. 104, note 18; id., Powołowe, poradlne, podymne (1972), reprinted in: ibid., vol. 2, p. 228; id., O chłopach w Polsce piastowskiej, part 2 (1975), reprinted in: ibid., vol. 3, p. 74.

19 Peasants in Piast Poland prior to Settlement with German Law 19 whole, he thought that research into its structure will not yield the right results until all the elements of this structure have been correctly reconstructed and arranged. This is why it was so important for the source survey to be complete, because the best, or even the only test of its adequacy is the very fact that all its elements form a monolithic and harmonic whole, with which all the source information fits and is incorporated into. 84 This raises the question of how to reconcile these expectations with the complex nature of social reality and multiple directions of historical processes. One has to have one s own vision despite the conviction that one is avoiding it. K. Buczek had his own well defined opinions, and they played an important part in his analyses. 85 We should, therefore, focus our attention on these. I have to begin with the problem of the terms: ducal law and duties due under ducal law. The terms had been used for a long time, but it was Buczek who defended their use, and he employed both terms from the beginnings of his research. 86 The stimulus to fully present his opinions was provided by the publication of a book based on the source material from the region of Silesia, by Joachim Menzel, 87 who in the opening part of his book demonstrated (rightly, in my opinion) the meaning of the term ius ducale as used in 13th-century sources. The term appeared in documents from 1230 on, 88 initially in Silesia, and it denoted mainly the higher instance of a prince s jurisdiction. In time, iura ducalia (plural) took over other ducal rights and monopolies. Anyway, the term did not appear too frequently in the documents of the 13th century. In 1966 K. Buczek rose in defence of the validity of terming the whole period between the 11th and 13th century as the time of ducal law. In fact, the term appeared only in the 13th century, and its meaning was not explicit. Even so, in his comprehensive polemical argumentation 89 the scholar tried to substantiate the ancient genesis of the regalia (prerogative 84 Id., W sprawie interpretacji, p See a clear presentation of his own research view and methodological principles: Buczek, Głos w dyskusji, pp The author sharply criticises the apriority and subjectivity of synthetic depictions in textbooks, and then, using the traditional terminology, he supports and substantiates his opinions about the origins of a majority of social institutions of the early feudal Polish state of the tribal period, based on the premises that the economic development of Western Slavic peoples was not much below that of Germanic ones, and in consequence also their social organisation was similar, for this reason they had to have a tribal system at least in the last century of the old era (p. 247). 86 Ibid., p. 250 f. 87 J.J. Menzel, Jura ducalia. Die mittelalterlichen Grundlagen der Dominialverfassung in Schlesien, Würzburg, Schlesisches Urkundenbuch, vols. 1 6, ed. H. Appelt, W. Irgang, Wien Köln Graz Weimar, (henceforth: SUB), here: vol. 1, no. 316: excepto iure ducatus; vol. 2, no. 83: excepto iure ducali (1234); cf. Gawlas, O kształt, p. 65 f. 89 K. Buczek, O tak zwanych prawach książęcych i królewskich, reprinted in: id., Studia, vol. 1, pp ; Buczek s criticism of the manifestations of political tendency present in Menzel s book was justified, similarly of his false assumption about immunity genesis of iurium ducalium (p. 327) and some of his elements of a source analysis.

20 20 Sławomir Gawlas rights of the ruler) associated with it and the power to exact duties and tributes. 90 Ducal rights were part of Polish law. They included the authority of rulers existing from the oldest times. Old services and elements of ducal law had survived in their original or almost original form till the decline of the early feudal system, of which they formed the most important part. The decline began in Lower Silesia at the end of the 13th century, in the principalities united by Władysław the Short at the beginning of the 14th century, and in Mazovia and Opole Silesia in the second half of the same century. 91 The scholar, misled by the opposition between the provisions in Polish law and in German law, which was interpreted mainly as immunities of new settlers, 92 incorporated phenomena from different periods within the first term. 93 The opposition contrasted ducal rights with the collective rights of the subjects. The relationship was supposed to be of public and legal character and to have originated at the dawn of statehood. It derived from the appropriated powers of tribal communities, which had become the foundation of ducal regale to land. Buczek presented the body of his construction already in his first publications in 1957, in which he declared that what he had written about the socio-economic and political system of early, feudal Poland is based on a renewed and comprehensive analysis of all issues relating to the subject made on the basis of all the source material. 94 The origins of peasants are undoubtedly related to the decline of a patriarchal system and emergence, on its ruins, first, of a military democracy (neighbouring and tribal communities) and then of a semi-patriarchal early feudal monarchy (the system of ducal law). Contrary to the previous opinions, there was no place within the system for free peasants with hereditary rights, for all hereditary landholders were obliged to serve to their monarch. Those of them who, for various reasons, were unable to serve on horseback [ ] perforce became unfree peasant inheritors and had to perform certain duties determined by some [ ] peas- 90 Ibid., p. 324: That the term ius ducale did not appear in sources before the 13th century [ ] does not mean that it was coined only in that century, since we have no unsuspicious immunity charters from the 12th century. Neither we can agree to the statement that there should be a distinction made between a single ius ducale, meaning the higher jurisdiction in major, i.e. bloody cases, that supposedly was the actual ducal right, and plural iura ducalia, that were of economic and military character ; Ibid., p. 326: If the determination of the scope of higher judicial authority could have been ascribed to the influence of German law, the transformation of iudicia maiora into a new part of the ducal right was a consequence of the fact that the ius ducale was the basis of Polish early feudal system in which princes had the highest jurisdiction. See Buczek, Głos w dyskusji, p. 250 f. 91 Ibid., p Cf. B. Zientara, Źródła i geneza prawa niemieckiego (ius Teutonicum) na tle ruchu osadniczego w Europie Zachodniej i Środkowej w XI XII wieku, PH 69 (1978), no. 1, pp Buczek, O chłopach, part 2, p. 125: This was coupled with a basically false understanding of the term Polish law, as if it had not been the ancient law existing from the dawn of time, but only from the 12th, 14th or even the 15th century and appeared in sources not as a chancellery opposition of the German law but a totally new construct. 94 Id., Uwagi o prawie chłopów, p. 101, note 16.

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